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ANALYSIS OF APRIL 1, 2008 CAV OPINION

[Posted April 1, 2008] Appellate attorneys know that the good-cause exception in Rules 5:25 and 5A:18 has to be invoked by the appellant; the courts do not apply it sua sponte. In today’s lone published opinion from the Court of Appeals of Virginia, Rambo v. Commonwealth, we find that that rule applies to comparable provisions in trial court proceedings, too.

Rambo was convicted of murder and two associated firearms counts. His lawyer moved on the morning of trial to dismiss the indictment because, he claimed, he had just learned that one of his witnesses – Rambo’s wife – was going to invoke her Fifth Amendment right not to testify. The wife had testified (against her will) in a special grand jury hearing after a grant of use immunity, and the Commonwealth had obtained a direct indictment after that, so there had been no opportunity for Rambo to cross-examine her. The trial court, relying on Rule 3A:9(b)(1), found that objection to be untimely.

In order to understand today’s ruling, you need to know something about Rule 3A:9. Part (b) says that any objection based on “defects in the institution of the prosecution” have to be raised within certain time limits. Part (c) specifies that the limit for such a motion is seven days before trial. Part (d) contains a saving provision, so that the court can relieve a litigant of the procedural bar of the above subsections, for good cause shown.

There was no question that Rambo’s objection came after the deadline. The only issue here was whether this raised an objection “based on defects in the institution of the prosecution.” With no on-point caselaw within Virginia, the court turns to federal cases, and to decisions from other jurisdictions, in order to conclude that this is, indeed, just such a defect, so the time limit applies to this motion. That leaves subsection (d), but today’s opinion leaves open the question of whether this last-minute revelation by the witness might have constituted good cause. That’s because Rambo never asked the trial court to apply that exception, so the appellate court finds it to be procedurally barred.

There is another issue in the case, but that, too, falls victim to a procedural default. Rambo sought to introduce at the sentencing phase certain evidence of his victim’s bad character. The trial court rejected that evidence, and Rambo, in his appellate brief, wrote this: “The law is well settled that upon a showing by a party of the good character of a party, the other side may introduce evidence of bad character.” That’s fine as far as it goes, and the prosecution had unquestionably introduced the good-character evidence. But Rambo forgot to add something to his appellate argument: A citation. Any citation. He offered no authority whatsoever to buttress this “well settled” principle.

You may be surprised to learn that this is a procedural default, but it is, in both Virginia appellate courts. Rule 5A:20(e) requires an appellant to include in his opening brief “principles of law, the argument, and the authorities relating to each question presented.” Rule 5:17(c)(4) imposes a similar requirement in the Supreme Court. Prior CAV decisions have held that if you don’t cite any actual authority (caselaw or statutory) to support your argument, then you’ve waived it, and that’s what happens to this argument today.